Products liability cases involve some type of product failure or malfunction.  The damages for product liability cases fall into two categories: personal injury or property damage.  Tennessee has a Products Liability Act which is set forth in Tennessee Code Annotated.  By definition products liability actions under Tennessee law include (1) strict liability in tort, (2) negligence, (3) breach of warranty, (4) breach of express or implied warranty, (4) failure to warn or instruct whether negligent or innocent, (5) misrepresentation, (6) concealment, (7) non disclosure whether negligent or innocent, and (8) any other theory in tort or contract.

Strict Liability

The above definition covers a lot of ground.  In my mind I first look for strict liability under the Second Restatement of Torts.  Thus, if the XYZ car corporation manufacturers a vehicle which has an accelerator that sticks to the floorboard which causes the car to accelerate up to 120 miles per hour, the XYZ company will be liable for accidents resulting from that defect.  If the car goes off the road because of the accelerator sticking to the floorboard, hits a rock wall and kills someone on the interstate, the injured persons need only show the product was defective and/or unreasonably dangerous in order to make the XYZ corporation pay for damages.

To be strictly liable the manufacturer or seller must sell a product in a defective or unreasonably dangerous condition at the time it left the control of the manufacturer or seller.  Alteration of the product after it leaves the manufacturer can be a defense to strict liability.

Defense to Strict Liability

The “sealed container doctrine” is an interesting defense.  Where the product is acquired by the manufacturer and sold by a retailer under circumstances where the seller did not have the opportunity to inspect the product, strict liability may not be asserted against an intermediate seller.  However, the breach of warranty, express or implied, may be argued against the seller.

Multiple Causes of Action

Typically, cases involving products can fit into several different theories of claims as listed above. In most lawsuits against the manufacturer of a product, the injured person will allege any of the following:

1)            strict liability;

2)            express breach of warranty (if there is a written warranty or words spoken during the sale that create a warranty);

3)            implied warranties of merchantability (usually as part of the Uniform Commercial Code which in broad terms means that the product should be of a fair and average quality);

4)            implied warranties of fitness for particular purpose (the seller knew of the particular purpose for which the goods were to be used and claimed that the goods would serve the purpose);

5)            common negligence;

6)            misrepresentation or failure to disclose information about the product (which leads to injuries);

7)            defective design (which may be argued as either negligence or strict liability).

Evidence and Summary Judgment

The particular elements an injured person must prove to satisfy any of these claims are usually the same with only one or two small additional facts.  Therefore, until all of the facts are known, it is best to bring a suit for every type of claim possible under the facts known at the time suit is filed and then see what additional facts are developed during the discovery phase of the lawsuit.  CAUTION: Under both Federal Law and the new Tennessee Statute governing summary judgment standards, a plaintiff must have enough factual proof at the time the suit is filed to make a good faith claim against a manufacturer or seller. If the defendants file for summary judgment, then the burden of proving the case is legitimate and should not be tossed out is on the plaintiff.  This is what is sometimes called the “put up or shut up” rule.  Plaintiffs do not have much time in which to gather the factual information before the case is put to the test in summary judgment.

Specific Tennessee Law

Tennessee has an interesting doctrine not seen in all jurisdictions called the “consumer expectation test”.  The consumer’s expectations are taken into consideration as to whether the product is unreasonably dangerous.  Tennessee also recognizes the “prudent manufacturer test”.  Under Tennessee Law, the consumer expectation test and the prudent manufacturer test are not exclusive of one another. The jury may review both tests in light of the proof to determine whether or not the product was unreasonably dangerous.

The consumer expectation test requires a showing that the product’s performance was below reasonable minimum safety expectations of the ordinary consumer having ordinary or common knowledge as to the product’s characteristics.  This test may not be used where complex products not familiar to the ordinary consumers are involved.  In the event of a complex product, the court would permit the jury to consider only the prudent manufacturing test.

Products liability cases extend to practically all goods manufactured and/or sold in the market place including machinery, clothing, drugs, food, cars, building materials, etc.  Because there are so many types of products and retailers, this area of law is vast and complex.  Many manufacturers are located in a different state than the injured party, so most cases are removed to Federal Court rather than State Court.  The Federal procedures vary from Tennessee Law and create their own array of concerns.  Additionally, most manufacturers and retailers have deep pockets for legal teams to defend these cases.  They can quite literally feel like David and Goliath.  Persons injured by products who believe they have a claim need experienced legal representation to pursue these matters.